Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Contributions to the Telecommunications ) CG Docket No. 11-47 Relay Services Fund ) ) COMMENTS OF THE INFORMATION TECHNOLOGY INDUSTRY COUNCIL The Information Technology Industry Council ( ITI ) hereby responds to the abovecaptioned Notice of Proposed Rulemaking ( NPRM ). 1 I. INTRODUCTION AND SUMMARY ITI s members are among the leading companies in the information and communications technology industry. ITI members are also among the key innovators that develop and supply Voice over Internet Protocol ( VoIP ) products and services that Congress sought to make accessible to people with disabilities in the Twenty-First Century Communications and Video Accessibility Act of 2010 ( CVAA ). 2 ITI and its members share the goal of broad accessibility to VoIP technology. The CVAA's expansion of the Telecommunications Relay Service ( TRS ) and the related TRS fund to encompass non-interconnected VoIP raises a number of significant questions and technical challenges. In these comments, ITI highlights these questions and challenges, while urging the Federal Communications Commission ( Commission ) to adopt a narrower definition 1 See Contributions to the Telecommunications Relay Services Fund, Notice of Proposed Rulemaking, 26 FCC Rcd 3285 (2011). 2 Twenty-First Century Communications and Video Accessibility Act of 2010, Pub. L. No. 111-260, 124 Stat. 2751 (2010). - 1 -
for non-interconnected VoIP within the context of Section 715 of the CVAA that exempts certain classes of products from participation in the TRS fund. Adopting the proposed approach will ensure continued progress toward the goal of accessibility without adding undue costs and complexity that may impact consumer choice. II. WHEN SHOULD NON-INTERCONNECTED VOIP CONTRIBUTE TO THE TRS FUND? ITI believes that there are a number of key questions and technical issues that must be addressed by the Commission's regulations with respect to TRS and the TRS fund. To wit: 1. What constitutes a VoIP service? While this may seem like a simple question, the answer is actually quite complicated, given the array of scenarios that are evolving in the marketplace. For example, if an entity deploys non-interconnected VoIP within its organization and the service cannot be used to communicate outside of the organization, has that entity deployed a non-interconnected VoIP service as per Section 715 such that it must contribute to the TRS fund? 3 Many ITI members manufacture and sell VoIP applications that are commonly purchased and deployed in such a fashion. 4 What about emerging point-to-point VoIP applications that work directly by IP address? In such instances, there is no central service involved. Would these services be subjected to TRS obligations under Section 715? What about products that include incidental, noninterconnected VoIP functionality to supplement primary services, such as the audio chat facility of multiplayer online games and online conferencing services? By definition, 3 It is even the case that some individuals deploy non-interconnected VoIP servers for shared use among their friends or community. 4 See http://en.wikipedia.org/wiki/list_of_sip_software#sip_servers for a list of proprietary and open source SIP servers, which is one of the types of VoIP servers available on the market. - 2 -
such products are not intended to be used as a VoIP communication service. Would these be subjected to TRS obligations under Section 715? We believe that all of the above scenarios should be excluded from TRS obligations. 2. What constitutes the revenue base from a VoIP service? In NPRM 19, the Commission proposes to require non-interconnected VoIP services to report their interstate end-user revenues as 'telecommunications revenues' on the FCC Form 499-A. If there are no end-user revenues, however, does it even make sense to require that the provider of this non-interconnected VoIP service incur the administrative costs associated with the TRS Fund? Indeed, in the example mentioned earlier where an entity deploys non-interconnected VoIP solely for use within its organization, VoIP is a cost, not a revenue source. Section 103 requires the Commission to establish a system such that the contribution from non-interconnected VoIP providers is comparable to the obligations of other contributors to such Fund. Other contributors are assessed fees based on interstate revenues directly related to the services provided. Accordingly, it would stand to reason that if a VoIP provider has zero interstate revenues, then its TRS obligation should also be zero. Imposing a TRS obligation and corresponding administrative burden on free services may risk causing providers to reconsider such offerings. Returning to the matter of incidental services, if the Commission were to decide to apply Section 715 broadly, one of the key questions and challenges will be determining how to fairly assess an appropriate and proportional contribution to the TRS Fund for incidental VoIP services. In the case of web conferencing products such as Adobe Connect and - 3 -
Microsoft Live Meeting, for example, many users will take full advantage of features such as document and screen sharing or text chat, but may utilize the voice capabilities only sparingly. Other users may choose to utilize these products in conjunction with a non-integrated telephone call, while still others may use the web conferencing software with an integrated but optional telephone bridge that connects the meeting audio to the public switched telephone network ( PSTN ). Similar scenarios will occur with gaming consoles and other devices that utilize network connectivity to deliver primary services and functionality. In addition to accurately isolating assessable interstate telecom revenues, the Commission would need to remove any circularity in its TRS funding mechanism. 5 To provide the PSTN-connected features discussed above, providers contract with licensed telecommunication service providers who pass through TRS contributions to their end users. In this way, companies make indirect contributions to the TRS fund through the purchase of wholesale telecommunications services. The Commission must resolve this complex issue before moving forward in this docket, to ensure TRS contributions are assessed in a competitively neutral manner across the industry. Additionally, the Commission would need to take into account that utilization of incidental VoIP is not independently tracked. It would require significant cost and effort to develop systems that track and record the proportional use of such features, and would raise serious privacy concerns. Without such systems, it would be near impossible to create an equitable formula for determining TRS obligations. 5 Report and Order & Notice of Proposed Rulemaking Released on FCC Updates Approach for Assessing Contributions to the Federal Universal Service Fund., (rel. July 5, 2006) at 58. - 4 -
Finally, we wish to note that the imposition of TRS obligations on non-interconnected VoIP services may place U.S. providers at a disadvantage relative to overseas VoIP providers, which presumably would not be subject to the same requirements. On the other hand, if the Commission does create a mechanism for collecting TRS Funds from foreign operators that have U.S. customers but no servers located in this country, such a precedent could be followed by other governments, and possibly used to erect barriers that limit market access. In light of these and other challenges, we strongly urge the Commission to ensure that the definition of a VoIP service is clearly limited to services for which the primary purpose is voice communication. 3. If users of a non-interconnected VoIP system cannot take advantage of TRS, is it appropriate for the organization that deployed that VoIP system to pay into the TRS fund? Many organizational non-interconnected VoIP services are deployed behind that organization's firewall. Even if some of the users within that organization were able to make use of TRS, e.g., for communication with other users within the organization, they could not do so because of technical and policy barriers preventing IP connections from outside of the organization's firewall. Also, some non-interconnected VoIP systems are tied to specific operating systems or hardware platforms. Since most TRS operators are unlikely to have access to all of the various operating systems and hardware platforms currently in use in the marketplace as well as the appropriate relay software for each it is unlikely that they would be able to provide relay service for users of those operating systems and platforms. - 5 -
4. Where does responsibility lie for VoIP interconnection? Today there are a number of mass-market VoIP systems that end-user consumers can individually sign up for and use. Some of these include interconnection functionality such that the VoIP users can communicate uni- or bi-directionally with common carrier voice telecommunications. In such cases, VoIP users can have a phone number associated with their VoIP account that can receive calls initiated from users of common carriers, and/or they can initiate calls to common carrier phone numbers. As noted earlier, there may be technical or logistical challenges with TRS operators participating in various non-interconnected VoIP systems. However, it is not difficult to imagine a third party business arising that provides VoIP interconnection services, where their routers connect a non-interconnected VoIP service to the common carrier telecommunications network. Once such an inter-connection is made, TRS potentially can be provided to places where previously it was not available. In such cases, the Commission should make clear that any duties associated with interconnected VoIP lies with the entity that provides the interconnection. III. PROPOSED REMEDY: NARROW THE DEFINITION OF NON- INTERCONNECTED VOIP SERVICE TO EXCLUDE CLASSES OF SERVICES In order to address the issues identified above, ITI proposes that the Commission revise the definition for non-interconnected VoIP service as follows: (A) a service that-- (i) enables real-time voice communications that originate from or terminate to the user's location using Internet protocol or any successor protocol; (ii) requires Internet protocol compatible customer premises equipment; and (iii) is offered to the general public as a communication service, for direct end user fee; and (B) Does not include any service that is an interconnected VoIP service. - 6 -
ITI further proposes that the Commission clarify that the portion of provider revenue subjected to the TRS fee should only include and be proportional to revenue directly collected from end users and attributable to the VoIP services serviceable by TRS. This should be done explicitly in the regulations, rather than as a waiver, because a waiver alone is not sufficient to exempt a service provider from the burden of Form 499-A reporting. 6 In addition, to the extent that providers of non-interconnected VoIP services are required to report their revenue for TRS contribution purposes, the Commission should require them to report their TRS revenues in block 5 rather than block 4 of Form 499-A. Reporting these revenues in block 5 clarifies that non-interconnected VoIP service is not a telecommunications service. 7 As we noted in our response to the Notice of Proposed Rulemaking on Advanced Communication Services, 8 a service is an offering to others. Therefore VoIP that is deployed solely within an organization is not a VoIP service. Furthermore, the Commission notes direction from both the Senate and House reports to ensure that contributions are made on an equitable basis, taking into account whether such services are offered free to the public. NPRM 21. It is not equitable to require organizations to pay into a fund that supports services that are not available to the organization's users. Nor is it equitable to require organizations to pay into a fund if they receive no revenues from the service offering associated with that fund. 6 See Comments of the Consumer Electronics Association in response to the Federal Communications Commission Notice of Proposed Rulemaking on Advanced Communications Services, CG Docket No. 10-145 (filed April 25, 2011) ( CEA Comments ), page 12. 7 See CEA Comments at 13. 8 See Comments of the Information Technology Industry Council in response to the Federal Communications Commission Notice of Proposed Rulemaking on Advanced Communications Services, CG Docket No. 10-145 (filed April 25, 2011), page 22. - 7 -
IV. CONCLUSION ITI requests that the Commission proceed with implementing the CVAA in the manner described herein. May 4, 2011 Respectfully submitted, /s/ken Salaets Ken Salaets Director, Global Policy /s/vince Jesaitis Vince Jesaitis Director, Government Relations /s/dean Garfield Dean Garfield President and CEO Information Technology Industry Council 1101 K Street, N.W. Suite 610 Washington, D.C. 20005 202-737-8888-8 -